Cook County State’s Attorney Kim Foxx did not commit any crimes in how her office handled the alleged hate crime hoax case of actor Jussie Smollett, but a special prosecutor who ultimately secured Smollett’s conviction says Foxx and some of her top aides could yet face professional consequences for allegedly deceiving the public about several key aspects of the case.
On Dec. 20, Cook County Circuit Judge Michael Toomin approved the release of the 60-page report of Special Prosecutor Dan K. Webb.
The report had been originally submitted to Judge Toomin in August 2020. However, the report had been kept under seal until after Smollett’s trial, which resulted in his conviction on charges of lying to Chicago Police.
Dan Webb
| winston.com
CPD detectives had been investigating Smollett’s claim that the actor, who is Black and gay, was attacked by white supporters of former President Donald Trump while walking in Chicago’s Streeterville neighborhood during the overnight hours of a night in late January 2019.
The alleged attack had garnered Smollett sympathy and attention around the world, particularly from politicians and others on the political Left, who unquestionably trumpeted the reported attack as further proof of the racism of Trump and his political supporters.
Police and prosecutors, however, said Smollett had faked the attack with the aid of two Nigerian acquaintances.
According to Webb’s report, every prosecutor Webb’s office interviewed had praised CPD’s Smollett investigation. Cook County prosecutors interviewed by Webb’s office uniformly described the case against Smollett as “strong,” with some describing the case as “air tight” and “one of the strongest cases [he has] ever seen.”
Nonetheless, in March 2019, Foxx’s Cook County State’s Attorney’s office shocked Chicago and the nation when prosecutors abruptly decided to drop charges against Smollett.
Amid the uproar in response, retired Cook County Judge Sheila O’Brien petitioned Judge Toomin to appoint a special prosecutor to investigate that decision, asserting Foxx had improperly handled the case.
Toomin appointed Webb, a former Chicago federal prosecutor, as special prosecutor in the case in August 2019, giving him authority both to reintroduce charges against Smollett and to investigate questions over whether Foxx had lied to the public and had been improperly influenced by powerful friends of Smollett to abandon the case against the actor.
As U.S. Attorney for the Northern District of Illinois, Webb in the 1980s oversaw the "Operation Greylord" investigations into judicial corruption in Cook County, and secured the conviction of Admiral John Poindexter in the Iran-Contra Affair. Webb now serves as co-executive chairman of the firm of Winston & Strawn in Chicago.
In the report, Webb notes his office did not find evidence to support any criminal charges against Foxx or her prosecutors for accepting bribes or any other misconduct. Further, Webb said his investigation did not uncover evidence Foxx and the Cook County State’s Attorney’s Office had dropped charges against Smollett in response to pressure from outside sources, including from Tina Tchen, chief of staff to former First Lady Michelle Obama.
The report notes Foxx spoke about the case with Tchen and others with ties to influential people. But in the report, Webb said he did not believe those conversations led prosecutors to surrender the case.
Rather, most of the conversations involving those outside figures predominantly focused on concerns over “leaks” of information about the case coming to the press from within the Chicago Police Department, which were shifting the public narrative around the case against Smollett.
However, Webb said his investigation revealed numerous lapses by Foxx and her team, including abuses of so-called prosecutorial discretion and repeated deceptive and misleading public statements about the case.
Webb noted his investigation was unable to actually answer the question of who decided to dismiss the charges against Smollett. In the report, Webb said two of Foxx’s top two deputies - First Assistant State’s Attorney Joseph Magats and the chief of Foxx’s Criminal Prosecutors Bureau, Risa Lanier - each pointed to the other for the decision to drop charges.
And, Webb said, charges were dropped, even though Foxx and all others in her office believed Smollett should not have been allowed to simply walk away.
“… Almost across the board, lawyers who currently work in or previously worked in the CCSAO’s criminal division who were interviewed … told the (Office of the Special Prosecutor) they were ‘surprised’ or ‘shocked’ by at least some facet of the dismissal terms,” Webb wrote.
Webb noted the State’s Attorney’s office had not uncovered any new evidence after initially filing charges against Smollett which could possibly be used to justify the dismissal of charges.
Further, Webb noted there was never any admission of guilt from Smollett, which would typically be required to lead to such a quick end to the case, without any change in evidence.
The decision was so bizarre it led Foxx’s former First Assistant Eric Sussman to tell Webb: “I’ve never seen anything like that.”
In the wake of the dropped charges, Webb said Foxx and her office continued to mislead the public.
Webb said Foxx issued “at least six” false or misleading statements about:
- The extent of her communications with others about the case, including Smollett’s sister, Jurnee;
- Her decision to “recuse herself” from the case; and
- Whether Smollett had received special treatment from her office.
For instance, Webb noted that Foxx stated to both investigators and the public that she had opted to “recuse” herself from the case, and hand it over to Magats, as soon as she learned that police considered Smollett a suspect in the case, and not a victim.
Webb, however, said Foxx knew such a “recusal” was impossible, because she was advised by a deputy early on that, if she believed she could not lead the prosecution, then, under the law, her entire office must be recused, and a special prosecutor appointed.
Further, Webb said, Foxx continued to communicate with Jurnee Smollett about the case, including three phone conversations with her over the four days in February 2019 after police told prosecutors they were going to seek charges against Jussie Smollett.
The report noted that in a conversation with Jurnee Smollett, Foxx may have revealed to the Smollett camp that police had identified Smollett’s alleged attackers as Smollett’s Nigerian alleged co-conspirators.
Webb said Jurnee Smollett also testified that Foxx told her Jussie Smollett “should be fine as long as stays consistent.”
Webb noted Foxx denied “making any statement about Mr. Smollett potentially being ‘fine’ if he took any particular action or making any statement of similar advice towards Mr. Smollett.”
Webb noted it is “rare (though not unprecedented)” for the family of a crime victim to have such seemingly unfettered access to the Cook County State’s Attorney herself.
The report further accuses Foxx of misleading the public over her office’s treatment of Smollett.
Foxx’s office repeated public statements that Smollett was treated no different than thousands of other non-violent offenders facing similar charges. But Webb noted that virtually none of the nearly 5,700 others Foxx’s staff identified actually equated to Smollett’s situation, and prosecutors did not properly screen Smollett’s case to determine if it qualified for dismissal.
“The fact that such a significant mischaracterization could be asserted without sufficient vetting, repeated by figureheads of the CCSAO, and then never be corrected or clarified – particularly in a case the CCSAO knows has captured the public attention – is unacceptable for an office that must be transparent and maintain public confidence,” Webb wrote.
Further, Webb noted Foxx and her lieutenants told the press and the public that Smollett was a non-violent offender with no prior criminal history. In fact, Webb noted, Smollett had been convicted in California on misdemeanor charges of giving false information to police officers in a DUI arrest.
“The fact that the CCSAO represented Mr. Smollett had no criminal background to try to justify to the public the terms of his dismissal is particularly troubling given that Mr. Smollett’s prior conviction related, in part, to making a false statement to police, and thus, similar to his alleged conduct” in Chicago, Webb wrote.
Because of such lapses, Webb said he was referring the matter to the Illinois Attorney Registration and Disciplinary Commission, a state agency which investigates claims of professional misconduct against lawyers in Illinois.
The ARDC is empowered to recommend to the Illinois Supreme Court whether to issue sanctions against attorneys registered in Illinois.